White v. Johnson

522 S.W.3d 417

Christopher J. WHITE, et al.

v.Lisa M. JOHNSON, et al.

v.City of Memphis, Tennessee

No. W2015–01157–COA–R3–CV

Court of Appeals of Tennessee, AT JACKSON.

June 22, 2016 Session

Filed July 7, 2016

Lenal Anderson Jr., Memphis, Tennessee, for the appellants, Christopher J. White, and Angelique Marie White.

Howard B. Manis and Andrew C. Clarke, Memphis, Tennessee, for the appellees, Lisa M. Johnson and Sherkita Lockhart.

J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong J., and William B. Acree, Sp. J., joined.

OPINION

J. Steven Stafford, P.J.

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

Background

On or around October 7, 2013, Aaron Dumas allegedly attacked Intervening Plaintiffs/Appellants Christopher J. White and Angelique Marie White ("Appellants"), causing serious injuries. A police investigation ensued and, on October 12, 2013, Mr. Dumas died when City of Memphis police officers allegedly used inappropriate chemical irritants in order to roust Mr. Dumas from the home in which he was ensconced, allegedly causing the home to catch fire. On October 6, 2014, Plaintiffs/Appellees Lisa M. Johnson, as Parent and Next Friend of Jordan Deshun Dumas and Jarien Johnson Dumas; and Sherkita Lockhart, as Parent and Next Friend of Javion Dumas, the minor children of Mr. Dumas ("Appellees") filed a complaint for wrongful death against the City of Memphis.

On October 7, 2014, Appellants filed a petition to intervene "[a]s [o]f [r]ight" in the wrongful death case, citing Rule 24 of the Tennessee Rules of Civil Procedure. Appellants did not allege that they had obtained a judgment against Mr. Dumas or that they had ever filed a complaint against any party as a result of Mr. Dumas's actions. Instead, Appellants alleged that they had "an interest in the outcome of this action to the extent of any payments made to [Appellees] and are entitled to claim said amount out of any recovery awarded to [Appellees] in this action." Appellants alleged that they were entitled to damages of at least $950,000.00. Appellants, therefore, asked that any funds recovered in Appellees action against the City of Memphis be placed in a trust, and that the damages owed to Appellants be paid from the trust.

Appellees opposed the petition to intervene and, on November 4, 2014, asked that the petition be dismissed for failure to state a claim upon which relief could be granted. Appellees argued, inter alia , that Appellants were not entitled to intervention "as of right" pursuant to Rule 24.01 of the Tennessee Rules of Civil Procedure because they failed to establish a legal right to any property recoverable in the underlying lawsuit against the City of Memphis, as they had never obtained a judgment against Mr. Dumas or his estate.

On December 4, 2014, Appellants filed a reply memorandum in support of their motion to dismiss. For the first time, Appellants cited Rule 24.02 of the Tennessee Rules of Civil Procedure governing permissive joinder, as the basis for their petition to intervene. Appellants again alleged that they had a legal right to any property recoverable in the underlying action against the City of Memphis.

On January 23, 2015, the City of Memphis filed an answer to Appellees' complaint, denying the material allegations contained therein. On May 18, 2015, the trial court granted Appellees' motion to dismiss Appellants' petition to intervene. Appellants filed a timely notice of appeal to this Court.

Issues Presented

Appellants raise the following issues for our review:

1. Do Appellants have a legal right to intervene in Appellees' wrongful death action against the City of Memphis where Appellants' and Appellees' claims have common questions of law and fact?

2. Are Appellants creditors under Tennessee Code Annotated Section 30–1–106 ?

Appellees also ask for damages incurred in the defense of a frivolous appeal.

Discussion¹

I.

Here, Appellants argue that the trial court erred in dismissing their petition for permissive intervention.² Permissive intervention is governed by Rule 24.02 of the Tennessee Rules of Civil Procedure, which states:

Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising discretion the court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

"Under rule 24.02, the trial court may permit an applicant to intervene if the court determines that the applicant's claims and the underlying action have a common question of law or fact." Mfrs. Consolidation Serv., Inc. v. Rodell , 42 S.W.3d 846, 861–62 (Tenn. Ct. App. 2000) (citing Ballard v. Herzke , 924 S.W.2d 652, 658 (Tenn. 1996) ); Tenn. R. Civ. P. 24.02 ). A question of law is "[a]n issue ... concerning the application or interpretation of the law[.]" Black's Law Dictionary 1366 (9th ed.2009). A question of fact is "[a]n issue capable of being answered by way of demonstration, as opposed to a question of unverifiable opinion." Id. Once "a common question of law or fact is established, the decision to allow intervention is a matter entrusted to the trial court's discretion, and the decision should not be reversed by an appellate court absent a showing of abuse of discretion." Ballard , 924 S.W.2d at 658. The Tennessee Supreme Court has previously held that a trial court does not abuse its discretion in denying permissive intervention where the interveners have another forum in which to determine the issues they raise and where the impact of the underlying case to the interveners is merely speculative. See State v. Brown & Williamson Tobacco Corp. , 18 S.W.3d 186, 193 (Tenn. 2000).

"In this case, we cannot conclude that Appellants' claims and the underlying action have a common question of law or fact," Rodell , 42 S.W.3d at 861–62, because Appellants have failed to establish that they have any legally recognized or enforceable claim to the proceeds of Appellees' wrongful death action. Black's Law Dictionary defines a claim as "the aggregate of operating facts giving rise to a right enforceable by a court;" and "[t]he exertion of an existing right; any right to payment ..., even if contingent or provisional[.]" Black's Law Dictionary 282 (9th ed.2009). Here, Appellants assert that the tortious conduct of Mr. Dumas caused them injuries for which they are entitled to recover damages. Appellants have not, however, ever actually filed a claim against Mr. Dumas's estate to recover these damages. As such, they have no legal right to recover any property from Mr. Dumas, his estate, or his descendants. Without an actual legal claim pending against Mr. Dumas's estate, Appellants' alleged right to share in the recovery of the wrongful death lawsuit against the City of Memphis is non-existent. Consequently, Appellants' need to intervene in this action to protect their alleged damages is based merely on speculation. See Overstreet v. Shoney's, Inc. , 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) ("[U]ncertain or speculative damages are prohibited only when the existence, not the amount, of damages is uncertain.") (citing S. Coach Lines v. Wilson , 31 Tenn.App. 240, 243, 214 S.W.2d 55, 56 (Tenn. Ct. App. 1948) ).

Furthermore, the filing of an intervening complaint in the underlying action is not a substitute for a properly filed tort action directly against Mr. Dumas's estate. Tennessee Code Annotated Section 20–5–103, known as the "Survival Statute," provides that:

In all cases where a person commits a tortious or wrongful act causing injury or death to another, or property damage, and the person committing the wrongful act dies before suit is instituted to recover damages, the death of that person shall not abate any cause of action that the plaintiff would have otherwise had, but the cause of action shall survive and may be prosecuted against the personal representative of the tort-feasor or wrongdoer.

Pursuant to this statute, a tortfeasor's death will not terminate a cause of action against him or her. Ferrell v. Miller , No. M2013-00856-COA-R3-CV, 2013 WL 6228153, at *4 (Tenn. Ct. App. Nov. 27, 2013). "Operation of the Survival Statute, however, does not create a new and independent cause of action, but ‘merely preserve[s] the cause of action that belonged to the person before the one who caused the injury died.’ " Liput v. Grinder , 405 S.W.3d 664, 672 (Tenn. Ct. App. 2013) (citing Goins v. Coulter , 185 Tenn. 346, 206 S.W.2d 379, 380 (1947) ). "The Tennessee Supreme Court has held that, because the statute provides the exclusive remedy and steps to be followed when such circumstances arise, the steps ‘must be strictly followed.’ " Liput , 405 S.W.3d at 672 (quoting Brooks v. Garner , 194 Tenn. 624, 254 S.W.2d 736, 737 (1953) ). "Accordingly, an action preserved by this statute, ‘may only be instituted against the personal representative of the tort-feasor.’ " Liput , 405 S.W.3d at 672 (quoting Goss v. Hutchins , 751 S.W.2d 821, 824 (Tenn. 1988) ). Because Appellants have not followed this procedure, they currently have no claim against Mr. Dumas's estate for the damages he allegedly caused prior to his death.

Appellants argue, however, that they were excused from this procedure because no estate was ever opened for Mr. Dumas following his death. With no personal representative ever appointed to represent Mr. Dumas's estate, Appellants assert that they had no opportunity to assert a claim against Mr. Dumas's estate. In support, Appellants cite Tennessee Code Annotated Section 30–1–106, which provides:

When any person dies intestate in this state, administration shall be granted to the spouse of that person, if the spouse makes application for administration. For want of application

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